Spafford & Tileston v. Beach

Álevy on real estate is not a prima facie satisfaction of the debt. An alias fi. fa, issued on return of a previous execution levied upon real estate which remained unsold for want of bidders, is irregular merely, but not void. So, also, non-compliance by the sheriff with the requirements of the statute in regard to the levy, advertisement, or sale of real estate, is mere irregularity. And such irregularities must be complained of in duo time, by motion, or they will be waived. A motion to set aside an execution and proceedings under it for irregularity merely, made five years after sale of real estate by virtue of the execution, is too late. The title of a purchaser of real estate sold on execution, is not affected by the insufficiency of the sheriff’s return to the execution. The sheriff’s certificate of sale and deed, and not his return, are the evidence of such title.

Case reserved from Oakland Circuit Court. Spafford and Tileston obtained a judgment in the circuit court against Beach, on which a Ji. fa. was issued November 14, 1837 ; and, at the May term, 1838, the fi.fa. was returned levied upon real estate of the defendant, which had been advertised for sale, and remained unsold for want of bidders. In October, 1839, an alias fi. fa. was issued on the same judgment, by virtue of which other real estate of the defendant was levied upon, and, in March, 1840, sold to the plaintiffs. The sheriff made return of his proceedings on the alias; but it did not appear therefrom, whether notice of the levy was given to the defendant, or to the person in possession of the property; —when or what manner notice of sale of the property was given; — whether notice was given of postponements of the sale which appeared to have been made ; — or where the sale took place: — and it appeared that the property consisted of several distinct parcels which were sold together for a gross sum, and not separately. The return also omitted to state that there were no goods and chattels of the defendant whereon to levy. In January, 1845, the defendant moved the circuit court to set aside the alias Ji. fa. and all the proceedings under it, and in support of the motion,